Commentary and analysis on American politics, culture, and national identity, U.S. foreign policy and international relations, and the state of education
- from a neoconservative perspective! - Keeping an eye on the communist-left so you don't have to!

Monday, June 29, 2009

In a narrow, 5-4 ruling, the Supreme Courthas ruled in favor of the New Haven, Conn., firefighters who sued the city for reverse discrimination. The lead plaintiff, Frank Ricci, argued that the city's rejection of the Fire Department's promotional examination violated the Civil Rights Act of 1964 and the 14th Amendment's Equal Protection Clause. Ricci took extraordinary steps to pass the exam. He quit a second job to make time for preparation. He also suffers from dyslexia and paid $1,000 to have his textbooks recorded to audiotape. With intense study he ended up placing 6th out of 77 people on the lieutenant's examination. Ricci's achievement is clearly a personal triumph, and a powerful example of hard work and self-determination. The Court's ruling for the plaintiffs, essentially rejecting New Haven's "race conscious" policies, would appear to be a no-brainer. But as no blacks or Hispanics performed well enough for promotion, the city claimed potential liability from "disparate impact" lawsuits and threw out the results.

Much is being written, of course. My interest here is to record the reaction on the far left of the spectrum. Clearly, leftist victimology, and continued claims of "accumulated racial disadvantages" and "institutional discrimination," are driving the discussion on the left. Here are a few samples, in no particular order:

As is true for most discussions of affirmative action, the fight over Ricci has completely ignored the countless ways that whites in America have long benefited, and continue to benefit, from exactly the sort of non-merit considerations which affirmative action opponents decry. As Justice Ginsberg noted, whites had a virtual monopoly for decades on firefighter positions until Congress extended Title VII to public employment ("firefighting is a profession in which the legacy of racial discrimination casts an especially long shadow"), and city officials in this case determined that the test in question was flawed because, among other things, it did not reward merit ....

A very disappointing, if unsurprising, ruling. Typically, it was Roberts, Kennedy, Alito, Scalia, and Thomas in the majority, with Ginsburg, Breyer, Souter, and Stevens dissenting. Ginsburg authored the dissent and noted, that the white firefighters "understandably attract this court's sympathy. But they had no vested right to promotion. Nor have other persons received promotions in preference to them."

They had no vested right to promotion is pretty much the crux of the whole case, as far as I'm concerned. Seven words that say a hell of a lot about entitlement and privilege.

I am afraid for my country. This country has a permanent black underclass; Hispanic economic mobility is not much better. Decades of affirmative action have done little to fix that. Now, we appear ready to abandon those attempts to level the playing field entirely. Of course, principles and ideals are important. But my question is open, and I apply it to the most thoughtful opponents of affirmative action and the most rabid and unthinking alike: what are the effects, for our country, of a permanent racial achievement divide? And can we reasonably expect to maintain a peaceful and just society with such a gap between the races?

This decision will be the focus of a lot of spin today and for the next several weeks. Republicans have been looking for a line of attack on Sotomayor -- and may try to make this case a bigger issue. As far as I can tell, Sotomayor and her colleagues on the Court of Appeals were following precedence in their decision. Today, the Supreme Court changed the precedent and the interpretation of federal employment law.

Those on the right wing will certainly spin this as proof positive of Sotomayor's incompetence, or her hatred of white people, etc. They've been preparing the ground for this ruling as a "seminal moment" that could derail the nomination, and they will come up with whatever distortions necessary to try to ensure that. But the charge rings pretty hollow and is based on a misunderstanding of the law, which is characteristic of many conservative arguments, actually.

In light of the SCOTUS' decision in Ricci, Congress must again act to rebuff the efforts of extreme right wing judicially activist Justices to roll back civil rights law ...

As in Parents Involved, the extreme conservative, brazenly judicially activist Gang of 5 has made clear their own willingness to overturn actions by the elected representatives of the People to act to remedy centuries of discrimination.

The Congress can not let this brazen act of judicial activism stand. It must enact legislation overturning the Court's unprincipled decision in Ricci.

It is difficult to disagree with the White House statement (and the SCOTUS analysis), which says that the opinion proves that Judge Sotomayor is not biased.

As I stated in my prior analysis, even with the 5-4 reversal, 12 judges have voted against the firefighters, while 11 voted for them. This definitely shows that the issue was unsettled and that Second Circuit ruling was within the mainstream of legal thought (on a highly divisive issue).

I suspect that her opponents, however, will not let it go. Despite the fact that 11 other judges, including 4 who sit on the Supreme Court, have ruled the same way, they will still make noise about the ruling proving that she is unqualified for the Supreme Court. Ultimately, there complaints will have no effect.

It is a decision with which I expect most Americans would agree. It will be interesting to see if Congress attempts to amend the law to negate the ruling. The optics in “putting a thumb on the scale” of a test for firefighters is not good.

As for Sotomayor, these opinions have all of the substance that is missing in the Second Circuit opinion. Judge Cabranes is proven correct about the deeper issues here. One of my greatest concerns about Judge Sotomayor has been the lack of any deeper or more profound analysis in her opinions, which all too often tend to dismiss such issues.

GUN CONTROL SIMILARLY ARGUES THAT BECAUSE THERE IS A LOT OF DEADLY GUN CRIME BETWEEN CRIMINALS IN DC, THAT NON-CRIMINALS IN NORFOLK - FOR EXAMPLE - SHOULDN'T BE ALLOWED TO HAVE GUNS. AS IS TAKING AWAY GUNS FROM NON-RELATED THRIRD PARTIES WAS JUST.

SIMILARLY, IN RELATION TO HEALTHCARE AND RETIREMENT/PENSIONS, THE LEFT DOESN'T WANT INDIVIDUALS TO SAVE FOR THEMSELVES OR PAY FOR THEIR OWN CARE, BUT THINK IT'S FAIRER IF UNRELATED THIRD PARTIES (TAXPAYERS) PAY FOR IT.

ALSO: TE LEFT DOESN'T WANT THE USA TO MAKE FOREIGN POLICIES BASED ON OUR OWN NATIONAL INTERST, BUT WANT THEM SUBORDINATED TO INTERNATIONAL INTERESTS - THIRD PARTIES. AS WHEN BUSH WAS AUTHORIZED TO USE FORCE AGAINST SADDAM BY CONGRESS, BUT THAT WASNLT GOOD ENOUGH FOR THE LEFT: NO NO NO: THEY WANTED THE UNSC TO EXPOICITLY APPROVE IT.

THE LEFT BASICALLY IS OPPOSED TO EVERYTHING INDIVIDUAL EXCEPT LIBERTINAGE.

YOU SHOULD FIGURE THIS WHOLE THIRD PARTY FIXATION OUT AND WRITE AN ESSAY, DONALD.

The question, simply, is what comports with the law. It seems clear that any reasonable interpretation of the law indicates that the five are correct, and the four not. Were New Haven's lawyers able to demonstrate post hoc the unfairness of the exam, presumably, they would have. They did not. And the particular sample cannot demonstrate the imputation, either.

Thanks Dan. I seems pretty straightforward to me. I'm always blown away at how leftists will twist every detail, and obfuscate the issues, in their effort ram home their radical ideological program. This is one more example.

Professor Kessler, ex-commissioner of the US Food and Drug Administration (FDA), claims that manufacturers have created combinations of fat, sugar and salt that are so tasty many people cannot stop eating them even when full.

He argues that manufacturers are seeking to trigger a "bliss point" when people eat certain products, leaving them hungry for more.

"It is time to stop blaming individuals for being overweight or obese," he said. "The real problem is we have created a world where food is always available and where that food is designed to make you want to eat more of it. For millions of people, modern food is simply impossible to resist."

I went and read Fred DeBoer's article, in which he lamented that decades of Affirmative Action have made but little dent in the "permanent black underclass."

My question is, and I did leave it on Mr DeBoer's site, if decades of Affirmative Action have had but little affect on the problem, why would we even want to continue it? By his formulation, AA simply hasn't worked.

"My question is, and I did leave it on Mr DeBoer's site, if decades of Affirmative Action have had but little affect on the problem, why would we even want to continue it? By his formulation, AA simply hasn't worked."

It's some kind of plea. I noticed that too. There's no personal responsibility involved in something like that.

Donald, there was one Hispanic person as part of the plaintiffs class. so this wasn't just a whites issue. also, regardless, Ricci was clearly disadvantaged and yet he worked doubly hard to ensure that he passed the exam.

one more question (rhetorical of course): what preference of voters was overturned by this ruling? and even if that were the case, why is it that when the ruling overturns something the left doesn't like, it's a perfectly fine use of judicial power - homosexual marriage and abortion come to mind - but when it goes against something they don't like... we you get my point.

Anyone who tries to tell you that this is simply a race issue or an easy call doesn't know jack about labor law."

This would have been more interesting if we only had designations of Race A versus Race B, and force the libs to take a position without knowing which one was black and which one was white. Had the black candidates scored well on the advancement test, and were still denied promotion, I doubt anyone would be demanding that we know jack about the balancing difficulties and nuance of labor law.

No doubt if they, or any member of their family, or a friend, missed out on a promotion which was well deserved, for no other reason than that it messed up a quota system, they'd be singing a different tune!

I guess they believe in the children paying for the sins of the fathers..but I don't know of anyone who ever owned a slave, or had any ancestors who did--and this is really what it's all about..just another form of reparation.

It's no more than a conservative's misunderstanding of the law?

Oh, we understand,perfectly, and see it for what it is, believe me.

I'm wondering when they will stop hurting minorities, by convincing them that they are victims, and not really capable of achieving anything by their own merits.

As I wrote before on this issue: the leftists are typically for the underdog, a worthy sentiment, but the discriminated person on this case race-based. Each case is different. This is about a person that overcame a learning disability and aced the same test everyone else took– it was a level playing field for the white fireman only because he put in the extra hours to achieve higher scores. If all the firemen including him were black he would have earned the right to the promotion. Why would color come into this! We have an African-American president! Senators, Congressmen and women, Supreme Court Justice, cabinet members, governors, mayors, even top billionaire black talk show hosts, on and on - isn’t it time to agree to the equality of my black and brown friends by refusing to hang the tacit debilitating and humiliating label of “underachiever” around their necks? Sotomayer would chip off the blindfold on the statue of Justice.

"Clearly, leftist victimology, and continued claims of "accumulated racial disadvantages" and "institutional discrimination," are driving the discussion on the left."

First -- you are misrepresenting the comments on "the left."

Second -- naturally, the only discrimination or disadvatage today affects white men. They barely have any more power in this society. Someone needs to help them. Thankfully the Supreme Court did! [yes -- sarcasm]

Dear Mr. Douglas: Before we leap to the defense of the test, it's worth noting that the test was exclusively written. No "real life" testing was involved. This seems a big deficiency to me. A fire lieutenant and captain is going to have charge of many life and death situations, and I would think judging coolness under fire would be part of the test.

That said, there's no question that Ricci& Co. followed the rules with great energy and vigor. Many on the Left (notably Emily Bazelon of SLATE howl that Ricci&Co had access to "networks" that the others didn't and it isn't FAIR. Such bunk overlooks that all of the candidates were internal New Haven FD employees. The question was, who wants to work hardest. Ricci set a fine example, though not one that the Left would applaud. SS did her damnedest to put her thumb on the scale, and failed. This judgment has to sting.

But this victory is hollow. Consider:

a) It's 5-4. Let the 73 year old Scalia's arteries blow out and it would come out the other way. The only consolation from replacing Scalia with another of The One's zanies would be that oaf Kennedy would suddenly not be The Most Powerful Justice, and would bust into tears. This would provide the citizenry with a funny spectacle, but shucks, The One and his daily buffoonery can outdo Kennedy easily.b) Had the case come out the other way, it would be a powerful reminder to the citizenry that i)elections do have consequences and ii) the elites in this nation care precious little for the rest of us. Affirmative action will roar on unabated until Supreme Court Justices have to take tests, only to see the results torn up because the test results weren't "correct."

Those who are pounding on Professor Hutchinson need to reconsider. The man provides space on his own blog for those who would blast him and doesn't censor in the manner of such petty tyrants as Kos. He's a man of the Left and not surprisingly, his views will differ from most of the folks here. He's polite well above the common Lefty and I think deserves reciprocal politeness. I'm sure he has his own prejudices but who doesn't? Not me? Not you?

I never liked the fact that New Haven seemed to've changed the rules after the game was played. I didn't--& still don't--understand the part of the law they were claiming to be upholding, but it seemed to me that unless they could somehow quickly prove there was bias in the test as written, they should've honored the results the firefighters earned, and then gathered more statistical info, and gotten/written a new test for the next promotion exam, if necessary.

That said, I don't buy into the idea that any of the rulings of any of the judges and justices "proves" any individual or group of judges was ideologically or racially biased in this case. While I agree with the SC decision, all together, more folks in black robes ruled the other way (by 1) than ruled with the SC majority. While I'm sure that is clear evidence of some kinda profound liberasocianihilist evil to some, it tells me that this wasn't as cut 'n' dried, black & white (excuse the expression) a case as it appeared. Valid legal claims were held by both sides...

Paying attention to--and when necessary, writing and enforcing laws mandating--equality of outcome is necessary to ensure we get what we all want, equality of opportunity.

Maybe in this particular group of applicants, there were "non-test" factors that made the results break down according to these racial lines. But if the same thing were to happen every time (and place, if it's standard) this test is administered, there would almost certainly be something wrong somewhere, and it would behoove those administering the test to find out where the problem lies.

Also, I agree with whoever said there's no such thing as reverse racism or bias... Racism is racism, & bias is bias, whoever it's directed against.

Sad that someone actually believes that Conservatives would think that merit does not count. If minorities score high on tests then that is what we want. There should be no reason that minorities should not score well on test given they put the work and effort into it. These people who tested were around long enough to know what the tests were all about and could have gotten together in study groups to aid their chances of doing well.At some point you have to stop handicapping minorities by thinking they do not have the wherewithal to succeed. Anyone, such as I and large numbers of Conservatives, know from personal experience that minorities have the capacity to succeed on their own merit. Lowered expectations of minorities is the real racism practiced by many on the Left. I would posit that if the left got out of the way minorities would do just fine and succeed with out them, which I suspect is the fear that most on the Left have about others.

Can somebody explain to me how a test about firefighting skills can be biased against a race? Are we saying that you can phrase questions in a certain way so as to confuse one race, but not another? That seems to be a racist proposition.

Also, the "years of discrimination" about which many liberals often scream clearly does not apply as equally to Hispanics, or Asians, as it does to blacks. Yet, they like to pretend that affirmative action programs are needed to remedy some age-old long-standing bias residue, when the simple fact is that most minorities (other than blacks) operate (as a percentage) in a large lower class simply because the large percentage of them are immigrants or children of immigrants, with language and financial barriers. Liberals prefer to have it "whites" and "everybody else," when the reality is that there are many more groups (in fact, Hispanics are white).

Testing serves several purposes. It tests ones knowledge and ability to take on further responsibility. It test one's ability to face challenges and to meet a standard that should be a part of every job. It also ensures to the extent possible that the "Good Old Boy" system has a harder time controlling the hiring, firing and promotion of the individuals involved.

The question of why test is dumb! It is like asking why one auditions musicians for a position in a major orchestra, test and license Doctors et al. I suspect that those who question tests are those too lazy to study and meet the requirements.Next time one needs the services of an EMT specialist ask for one who has not been tested is one is so against testing. Being a fireman carries a lot a knowledge to keep from killing people and to effectively utilize men, material, money et al.

Repsac3, I agree with you on many of your points. It is encouraging to me on this Americanpower battlefield when logic prevails over the usual habit of some, of forcing a right or left position into every single domestic or foreign event.

I also agree with you that “any of the rulings of any of the judges and justices” doesn’t prove “ any individual or group of judges was ideologically or racially biased in this case.” I do hope you are right, but I fear her general comments citing race off the record appears to be biased, if not racist. That might even be expected and understandable for common folk, but it just can not be the habit of a Supreme Court Justice.

Incidentally, as I understand it, the only reason the firefighter management decided to change the rules after the fact was “fear of litigation.” This was cited after Sotomayer’s decision was overturned, in Justice Anthony Kennedy’s summation - “Fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examination and qualified for promotions.”

While I think Sotomayer’s personal story is compelling, and she is a role model for women and Hispanics in this country, it troubles me that Sotomayer never offered the customary full opinion of this case. Judges usually love to give their opinions. In reviewing a number of her cases the brevity of her opinions and a lack of substance along with her statement on identity politics about “white men,” is probably going to come up in the Senate confirmation hearings. That said, she will be confirmed. I am just saying this for the record.